Herrera sues Trump administration over HHS rule

San Francisco City Attorney Dennis Herrera on Thursday announced he had filed suit against the Trump administration's Department of Health and Human Services to invalidate a new federal rule that would allow health care staff to refuse to provide medical treatment to people, even in emergencies.

If allowed to take effect, the rule would reduce access to health care, particularly for women; LGBT people; and other medically and socially vulnerable populations, Herrera's office stated in a news release.

The new rule, which is scheduled to go into effect in 60 days, would allow health workers to refuse to perform or assist medical procedures — like sex reassignment surgery, abortion, or assisted suicide — if it violates their "conscience" or religion, media outlets reported.

Herrera's news followed a May 2 announcement by the Department of Health and Human Services of the final version of the regulation. The lawsuit seeks to have the new rule declared unconstitutional. It also seeks a court order preventing the rule from going into effect.

Herrera filed the lawsuit in U.S. District Court for the Northern District of California. He said HHS exceeded its statutory authority by creating its "conscience" rule and violated the Administrative Procedure Act, the spending clause, separating of powers principle, and other provisions of the U.S. Constitution.

"At its core, this rule is about denying people medical care," Herrera said in the release. "This administration is willing to sacrifice patients' health and lives — particularly those of women and members of the LGBTQ community, and low-income families — to score right-wing political points. It's reprehensible."

According to the release, the new rule requires cities like San Francisco — in all circumstances — to prioritize a staff person's religious beliefs over the health and lives of patients. The rule is so broad that it applies not just to doctors and nurses, but anyone even tangentially related to health care, like receptionists. Schedulers, for example, could refuse to schedule appointments for LGBTQ patients or a woman seeking information about an abortion, the release stated.

If San Francisco refuses to comply with the rule, Herrera said it risks losing nearly $1 billion in federal money that funds everything from Medicaid to Medicare to HIV treatment to assistance for low-income families and foster children.

"Once again, the Trump administration is trying to bully local governments by threatening to withhold federal funds. That's not how American democracy works," Herrera added.

The release noted that the city currently has "a thoughtful, balanced approach" to handling medical staff with objections to certain treatments. Under that policy, medical staff can request not to participate in a procedure on moral, religious, or ethical grounds. The individual's manager or supervisor must determine if the staff member's request for accommodation negatively affects the quality of the patient's care. If the patient's needs do not allow for the substitution of personnel, the manager and/or supervisor must inform the staff member to stay at their post until other competent personnel can be provided. If possible, accommodations will be made, which may include transferring individuals to another area where they will not be called upon to perform the task they find objectionable.

Herrera's office said the policy reflects the San Francisco Department of Public Health's respect for the religious and moral beliefs of its staff, "as well as its paramount responsibility and commitment to serve the needs of patients," the release stated.

The rule was first proposed in January 2018.

Last month, the Bay Area Reporter reported that the Service Employees International Union Nurse Alliance of California launched a change.org petition calling on Congress to act against the HHS rule. It raised objections to seeing federal rules allow a nurse to cite their religious beliefs as for why they could not care for a transgender person or include the spouse of a gay or lesbian person in their health care decisions.

The nurses had planned to deliver the petition to House Speaker Nancy Pelosi's (D-San Francisco) office. A Pelosi spokesman said that the speaker supported the goals of the petition.

The case is: City and County of San Francisco v. Alex M. Azar II, U.S. District Court case number 3:19-cv-02405, filed May 2, 2019. More information can be found on the City Attorney's website: www.sfcityattorney.org.